1. This is an appln. from a person who describes himself as a White Russian & is now confined at the Alipore Jail. He asks us to hold that his confinement is unlawful & that he is entitled to be released There is no formal petn. but the matter came to the notice of the Ct. as a result of a letter sent by the detained person to myself as Chief Justice of this Ct.
2. In that letter the detained person states that he is a native of Georgia in Russia; but not a citizen of the U. S. S. E. He says that he is stateless & is what is commonly described as a White Russian.
3. This detained person states that he arrived in India in the month of March 1942, as a volunteer of the British Army & has been in India ever since. Whether this statement is true or false we have no means of testing.
4. On 22-7-1947, he states that he was arrested at his residence in Kalimpong & was taken to Kalimpong jail This detention he says was made under para 7, of the Foreigners Order of 1939. On 24-7-1947, he was transferred to Calcutta & was handed over to the Security Control Police. He says that he was kept for a month & a half in the lockup of the Security Control Police & was later transferred to the Presidency Jail under the orders of a D. C. named Gardner also made under para 7 of the Foreigners Order 1939.
5. On 15-10-1947, the detained man says that he was served with an order directing him to leave the country within a period of one month from the date of the service of the order the order having been made under Section 3, Foreigners Act, 1946. The detained man was not released, but on the contrary was sent back to the Presidency Jail & later transferred to the Alipore Central Jail. He says that he has requested the authorities on a number of occasions to release him, so that he can comply with the order deporting him from this country, but he says that he has been detained throughout & has been unable to make any attempt to leave the country. It is clear also that up to now the Govt. have not succeeded in making arrangements for this man to leave the country.
6. The learned Advocate-General who has appeared on behalf of the Provincial Govt. has contended that the detention of this man is lawful as it was authorised by an order made under the Foreigners Act, 1939. Counsel on behalf of the detained person, however, has pointed out that the Foreigners Order of 1939 has been superseded by a Foreigners Order of 1948 & no order of detention under this latter order has ever been made. In our view, however, it is not necessary to consider what powers the Govt. had under the Foreigners Order 1939, & whether an order of detention under that Order could be still effective, because it appears to us that any order for detention made under the Foreigners Order 1939, has been superseded.
7. The order made under para 7 of the Foreigners Order 1939, stated to be dated 28-8-1947. Whether this is a good order under para 7 of the Foreigners Order 1939, it is unnecessary to decide. But assuming that it was a good order, it has in in my view been superseded, because on 22-8-1947, the Central Govt. acting under Sub-section (2) of Section 3, Foreigners Act, 1946, made a deportation order against the detained person. By that order he was directed not to remain in India after the expiry of one month from the date on which the order was served on him & it would appear that the order was actually served on him on 15-10-1947. Further, he was directed to depart from India by such route as might be prescribed for him by the Central Govt. & he was directed that he was not to re-enter India thereafter.
8. This order must be held to supersede any detention order, because in the first place this is an order of the Central Govt. whereas the detention order was an order of the Provincial Govt. & secondly, this order could not possibly be carried out if the detention order remained effective. The order under Sub-section (2) of Section 3, Foreigners Act, 1946, contemplates that the detained person should have a month to make arrangements to leave the country. It does not contemplate that the arrangement should be made for him by the Central Govt. or the Provincial Govt. All that the order provides is that if the Govt. prescribes any route by which he is to leave India, he must, depart by such route.
9. Though the detained person was served with this order, he has never been given an opportunity to comply with it. He says, & that is not denied, that immediately this order was served upon him he was sent back to the Presidency Jail & then transferred to the Alipore Jail, & there he has been detained until today. How can this detained person comply with this order if he is not released? The Advocate-General has contended that it would be impossible for this detained person to comply with the order as no ship or air-craft would receive him without a passport, & it is said that he has no passport. If that be the case, then why did the Central Govt. make a deportation order In any event I do not think it is for the Central Govt. or the Provincial Govt. to decide whether this man can or cannot make arrangements to leave this country. It cannot possibly be said that he cannot leave the country until he has endeavoured to do so & failed. He has never been given the opportunity & the Provincial Govt. have decided for him that he could not leave the country even if he tried. It appears to me that the Provincial Govt. cannot make such an assumption & detain this person indefinitely.
10. The Foreigners Act makes provision for cases where a foreigner ordered to leave the country fails to do so. Section 14 of the Act provides that if any person contravenes the provisions of the Act or of any order made thereunder, or any direction given in pursuance of the Act or such order, he shall be punished with imprisonment for a term which may extend to five years & that he shall also be liable to a fine.
11. It is clear therefore that if the detained person contravenes that order he can be suitably dealt with. What contravention of the order amounts to will have to be decided later & I do not wish it to be thought that I am holding now that failure to comply with the order, for reasons over which the foreigner has no control, would necessarily amount to a contravention of the order. That is a matter which would have to be decided when the point actually arises. However, it is clear that the Foreigners Act does provide for cases where the orders of deportation are contravened. That being so, if this detained person, having been given an opportunity to comply with the order, refuses to comply with it or possibly fails to comply with it, then steps can be taken against him.
12. However, the present state is that this order has been made giving him a month to leave the country & he has never been given an opportunity to leave. He has not been given a moment's freedom & in my view this continued detention cannot possibly be justified. As this deportation order has been made against him he must be released & given an opportunity of leaving the country. If he fails to leave the country within the month as ordered, then it may be that the Provincial Govt. or the Central Govt. may have other methods of dealing with him. They cannot however, having made the deportation order, refuse to release him & refuse to give him an opportunity of complying with it That being so, we direct that this detained person, B. A. Shervashidze, who is at present detained in the Alipore Central Jail be set at liberty fort a with.
13. We are informed that the detained person is in Ct. He cannot be taken back to jail, unless he wishes to go there to remove any of his personal belongings.
S.R. Das, J.
14. I agree.